Zahn v. Taubner, (2012) 550 A.R. 219 (QB)

• Judge: Verville, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 05, 2012
• Citations: (2012), 550 A.R. 219 (QB);2012 ABQB 636

Zahn v. Taubner (2012), 550 A.R. 219 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. OC.110

Dennis Zahn and Randy Zahn (plaintiffs) v. Robert Taubner (defendant)

(0203 00280; 2012 ABQB 636)

Indexed As: Zahn v. Taubner

Alberta Court of Queen's Bench

Judicial District of Edmonton

Verville, J.

October 17, 2012.

Summary:

The plaintiffs challenged the validity of their stepmother's will. They raised issues of suspicious circumstances, testamentary capacity and undue influence. The defendant executor denied the assertions and was successful at trial (see [2012] A.R. Uned. 527). The defendant applied for costs against the plaintiffs. The plaintiffs requested that their costs be paid out of the estate on a party-party basis.

The Alberta Court of Queen's Bench dismissed the defendant's application and ordered that the plaintiffs receive their costs on a party-party basis from the estate.

Executors and Administrators - Topic 5548

Actions by and against representatives - Costs - Where payable out of estate - Ford executed a will in 1985 in which her stepsons (plaintiffs) were the primary beneficiaries - She executed a new will in 2000, less than a month before dying of lung cancer - Ford's siblings were the primary beneficiaries under the new will - The plaintiffs challenged the validity of the new will, raising issues of suspicious circumstances, testamentary capacity and undue influence - The defendant executor of the estate was successful at trial - The plaintiffs requested that their costs be paid out of the estate on a party-party basis - The Alberta Court of Queen's Bench granted the plaintiffs' request - The plaintiffs had acted reasonably in challenging the will - While their costs were significant ($140,018), they represented a relatively small portion of the estate's overall value ($2 million) and would not deplete the estate's assets - While payment of the costs would reduce the amount available to residual beneficiaries, the conduct of two residual beneficiaries had contributed to the litigation - See paragraphs 68 to 70.

Practice - Topic 7024

Costs - Party and party costs - Successful party - Exceptions - General - [See first Practice - Topic 7032.1 ].

Practice - Topic 7032.1

Costs - Party and party costs - Entitlement to - Estate matters - Ford executed a will in 1985 in which her stepsons (plaintiffs) were the primary beneficiaries - She executed a new will in 2000, less than a month before dying of lung cancer - Ford's siblings were the primary beneficiaries under the new will - The plaintiffs challenged the validity of the new will, raising issues of suspicious circumstances, testamentary capacity and undue influence - The defendant executor of the estate was successful at trial - He applied for costs against the plaintiffs - The Alberta Court of Queen's Bench dismissed the application - The plaintiffs reasonably had the impression, based on their relationship and discussions with Ford, that they would be the primary beneficiaries - The plaintiffs were advised that Ford was being pressured by family members respecting a will - They also learned that Ford's siblings initiated the events that led to Ford signing the new will and that Ford suffered bouts of delirium during the material times - The plaintiffs' actions in challenging Ford's will were therefore reasonable - Other evidence concerning Ford's medical condition and pressure on her unfolded as the litigation proceeded - The plaintiffs' conduct throughout the litigation was reasonable - There was merit to their position that Ford was unduly influenced - Both parties had made serious offers to settle, none of which were accepted - The plaintiffs' failure to beat a settlement offer was not a factor that weighed significantly against them - If the court was wrong and the plaintiffs were required to pay costs, the above constituted exceptional circumstances that warranted a departure from the normal rule that double costs were payable from the time of an offer - See paragraphs 16 to 67 and 71.

Practice - Topic 7032.1

Costs - Party and party costs - Entitlement to - Estate matters - [See Executors and Administrators - Topic 5548 ].

Practice - Topic 7040

Costs - Party and party costs - Entitlement to - Unsuccessful party - [See Executors and Administrators - Topic 5548 ].

Practice - Topic 7242.1

Costs - Party and party costs - Offers to settle - Grounds for denying double or substantial indemnity costs - [See first Practice - Topic 7032.1 ].

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - [See first Practice - Topic 7032.1 ].

Practice - Topic 7326

Costs - Costs in probate proceedings - Unsuccessful opposition to proof of will - [See first Practice - Topic 7032.1 ].

Cases Noticed:

Mahe et al. v. Boulianne, [2010] A.R. Uned. 25; 81 R.F.L.(6th) 4; 2010 ABCA 74, refd to. [para. 7].

Babchuk v. Kutz et al. (2007), 411 A.R. 181; 2007 ABQB 88, affd. (2009), 457 A.R. 44; 457 W.A.C. 44; 2009 ABCA 144, refd to. [para. 10].

Petrowski v. Petrowski Estate et al. (2009), 476 A.R. 171; 2009 ABQB 753, refd to. [para. 11].

McCullough Estate, Re (1998), 212 A.R. 74; 168 W.A.C. 74; 1998 ABCA 38, refd to. [para. 11].

Paniccia Estate et al. v. Toal (2012), 541 A.R. 300; 2012 ABQB 367, refd to. [para. 11].

Foote Estate, Re (2010), 484 A.R. 188; 2010 ABQB 197, affd. (2011), 493A.R. 354; 502 W.A.C. 354; 66 E.T.R.(3d) 183; 2011 ABCA 1, refd to. [para. 14].

Gamache v. Gamache (2005), 389 A.R. 256; 2005 ABQB 944, affd. (2007), 417 A.R. 367; 410 W.A.C. 367; 2007 ABCA 354, refd to. [para. 14].

Marsh Estate, Re (1991), 104 N.S.R.(2d) 266; 283 A.P.R. 266 (C.A.), refd to. [para. 14].

Allen v. University Hospitals Board et al. (2006), 384 A.R. 23; 367 W.A.C. 23; 2006 ABCA 101, refd to. [para. 14].

Zubick et al. v. Alberta Teachers' Association et al. (2008), 439 A.R. 28; 2008 ABQB 241, refd to. [para. 14].

Kucher v. Seaboard Life Assurance Co. (1997), 208 A.R. 1 (Q.B.), refd to. [para. 14].

Taubner Estate, Re (2010), 485 A.R. 98; 2010 ABQB 60, refd to. [para. 34].

Rubin v. Gendemann (2011), 518 A.R. 128; 2011 ABQB 466, refd to. [para. 55].

Counsel:

Donald R. Cranston, Q.C., and Laura Inglis Chubb (Bennett Jones LLP), for the plaintiffs;

Robert M. Curtis, Q.C., and Christopher V. Kurata (McCuaig Desrochers LLP), for the defendant.

This application was heard on October 5, 2012, before Verville, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on October 17, 2012.